BAYRAMOV AND IMANOV v. AZERBAIJAN - 79522/13 (Judgment : Article 11 - Freedom of assembly and association : First Section Committee) [2023] ECHR 175 (23 February 2023)

JUDGMENT STRASBOURG 23 February 2023 This judgment is final but it may be subject to editorial revision. In the case of Bayramov and Imanov v. Azerbaijan, The European Court of Human Rights (First Section), sitting as a Committee composed of: Krzysztof Wojtyczek , President , Lətif Hüseynov, Ivana Jelić , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no. 79522/13) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 3 December 2013 by two Azerbaijani nationals, Mr Gubad Ibad oglu Bayramov (who notified the Court on 24 July 2017 that he had changed his surname to Ibadoglu), born in 1971 and living in Baku, and Mr Rajab Arrahman oglu Imanov, born in 1980 and living in Fuzuli (“the applicants”), who were represented by Mr I. Aliyev, a lawyer based in Azerbaijan; the decision to give notice of the complaints concerning Articles 6, 11 and 34 to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 31 January 2023, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1. The present application concerns the refusal by the domestic authorities to register an association established by the applicants. 2. In 2012 the applicants established a non-governmental organisation called the Centre for Public Initiatives - Public Association ( “ İctimai Təşəbbüslər Mərkəzi” Ictimai Birliyi ). They requested the Ministry of Justice of the Republic of Azerbaijan (“the Ministry”) to register their association as a legal entity and submitted relevant documents. . In a letter of 22 May 2012 addressed to the applicants, the Ministry indicated that, in contravention of Article 3.1 of the Law on Non‑Governmental Organisations (Public Associations and Funds) (“the Law on NGOs”), the name of the association did not reflect the character of its activity. Based on that alleged deficiency the Ministry returned the documents. 4. Having received the above-mentioned letter, the applicants decided to resubmit their request for registration without making any changes in the name of the association as they considered that the allegation made in the Ministry’s rejection letter had been expressed in general terms and had not been clear. 5. In a letter of 2 August 2012 addressed to the applicants, the Ministry repeated that the name of the association did not reflect the character of its activity and emphasised that the deficiency pointed out in the previous letter had not been rectified. 6. Both letters of the Ministry concluded that based on Article 11.3.1 of the Law on State registration and the State register of legal entities (“the Law on State Registration”), the documents were “being returned” ( sənədlər geri qaytarılır ) or “being returned unexecuted” ( sənədlər icra olunmadan geri qaytarılır ). 7. Having received the letter of 2 August 2012, the applicants lodged a complaint against the Ministry with Baku Administrative Economic Court No. 1. They argued that the Ministry’s allegation was false and unlawful because it was clear both from the name and the charter of the association that the character of its activity was to participate in and promote various public (civil) initiatives and public advocacy. 8. On 12 December 2012 the first-instance court dismissed the complaint, finding that the Ministry had acted lawfully by refusing to register the association. The first-instance court emphasised that the finding made by the Ministry as to the alleged deficiency (summarised in paragraph 3 above) had been lawful. The Baku Court of Appeal upheld that judgment on 12 February 2013, largely reiterating the first-instance court’s findings. On 5 June 2013 the Supreme Court upheld the judgment of the appellate court. 9. In August 2014 criminal proceedings were instituted against the applicants’ representative, Mr Aliyev. The investigating authorities seized many documents from his office, including the case file relating to the present application. 10. The applicants complained before the Court that the Ministry’s actions had violated their right to freedom of association. . They also complained that the seizure of their case file from their lawyer’s office had been in breach of Article 34 of the Convention. . Lastly, the applicants complained under Article 6 of the Convention that the Supreme Court had examined their case in their absence, as they had not been notified about the court’s hearing. THE COURT’S ASSESSMENT I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 13. The applicants argued that the allegation made by the Ministry in its refusal letters had no factual or legal basis. . The Government submitted that the Ministry had returned the documents so that the applicants could rectify the deficiency contained in them. 15. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 16. The general principles applicable to the present complaint have been summarised in Election Monitoring Centre and Others v. Azerbaijan (no. 64733/09, §§ 65-66 and 69-74, 2 December 2021). 17. As in Election Monitoring Centre and Others , the Court reiterates that the Law on State Registration contained, inter alia , two relevant registration rules prescribed by Articles 8.3 and 11.3.1 respectively. Article 8.3 provided that if the documents submitted contained deficiencies which did not warrant a formal refusal to register an association, the Ministry had to return those documents and give the founders twenty days to rectify those deficiencies. Under Article 11.3.1, registration could be refused if the documents submitted were in breach of the Constitution of Azerbaijan, the Law on State Registration or any other legislation (ibid., § 51). 18. The wording of the Ministry’s letters in the present case was ambiguous as to whether they constituted a decision under Article 11.3.1 of the Law on State Registration “refusing to register” the association or a decision under Article 8.3 of the same Law “returning the documents for rectification” (compare Election Monitoring Centre and Others , cited above, § 52). 19. Nevertheless, the domestic courts treated the Ministry’s letters as a decision under Article 11.3.1 of the Law on State Registration refusing to register the association, without examining whether the letters were procedurally correct. The courts proceeded to declare that the Ministry’s finding as to the alleged deficiency (summarised in paragraph 3 above) had been lawful and, consequently, that the refusal to register the association had also been lawful (compare and contrast Election Monitoring Centre and Others , cited above, §§ 93 and 54 respectively). 20. It follows, therefore, that the domestic courts treated the alleged deficiency as one warranting a direct refusal to register the association simply because that deficiency constituted a breach of a certain domestic norm - namely Article 3.1 of the Law on NGOs, which required that the name of an association had to reflect the character of its activity. 21. In that connection, the Court notes that it can be inferred from the association’s name that it was a non-governmental organisation established in the form of a “public association” as opposed to a “fund” and that its activity would concern various public initiatives. It is not clear, therefore, why the domestic authorities, including the courts, were not satisfied that the applicants had complied with the above-mentioned Article 3.1 of the Law on NGOs. Nor did the Government submit any explanation to that end. 22. However, in the Court’s view, even assuming that there were factual and legal grounds for finding that the name did not reflect the character of the association’s activity, as alleged by the Ministry, clearly that deficiency did not concern substantive issues related to the existence or activities of the association, and it could only be characterised as an alleged shortcoming of a procedural nature. Therefore, it is not clear why the domestic authorities chose not to treat it as a “rectifiable deficiency”. The Court considers that by applying Article 11.3.1 of the Law on State Registration to any, even the slightest, failure to comply with a particular domestic norm - irrespective of the substantiveness of the matter regulated by the norm in question - the domestic authorities adopted an unforeseeably broad interpretation of that Article (compare, mutatis mutandis , Election Monitoring Centre and Others , cited above, § 90). It follows therefore, that the manner in which the domestic law was interpreted and applied in the present case did not afford the applicants protection against arbitrary interferences. 23. Having regard to all the above, the Court finds that the domestic authorities’ refusal to register the applicant’s association was arbitrary and not “prescribed by law” within the meaning of Article 11 § 2 of the Convention. 24. There has accordingly been a violation of Article 11 of the Convention. II. OTHER ALLEGED VIOLATION UNDER WELL-ESTABLISHED CASE-LAW 25. The applicants also raised another complaint (see paragraph 11 above) covered by the well‑established case-law of the Court. Having examined all the material before it, the Court concludes that that complaint discloses a violation of Article 34 of the Convention in the light of its findings in Annagi Hajibeyli v. Azerbaijan (no. 2204/11 , §§ 64-79, 22 October 2015). III. OTHER COMPLAINTS 26. The applicants also complained under Article 6 of the Convention (see paragraph 12 above). Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has dealt with the main legal questions raised by the application and that there is no need for it to examine the remaining complaint (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08 , § 156, ECHR 2014). APPLICATION OF ARTICLE 41 OF THE CONVENTION 27. The applicants claimed, jointly, 10,000 euros (EUR) in respect of non‑pecuniary damage and EUR 1,100 for costs and expenses (namely for legal services) incurred before the Court. 28. The Government submitted that the claims were unsubstantiated and excessive. 29. The Court awards EUR 4,500 to the applicants jointly, in respect of non-pecuniary damage, plus any tax that may be chargeable. 30. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 500 to the applicants jointly, for legal services, plus any tax that may be chargeable to the applicants. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint concerning Article 11 admissible; 2. Holds that there has been a violation of Article 11 of the Convention; 3. Holds that there is no need to examine the admissibility and merits of the complaint under Article 6 of the Convention; 4. Holds that the respondent Government have failed to comply with their obligations under Article 34 of the Convention; 5. Holds (a) that the respondent State is to pay the applicants jointly, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid directly into the bank account of the applicants’ representative, Mr I. Aliyev; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 23 February 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv Tigerstedt Krzysztof Wojtyczek Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII